Federal judge hears Occupy case

Federal judge Mark Kravitz heard arguments from Occupy New Haven, City Hall and the New Haven Green’s legal proprietors today in a lawsuit that Occupy protesters encamped on the Green hope will protect them from eviction.

Norm Pattis, Occupy’s attorney, argued before Kravitz that the regulations governing the Green, where the protesters first settled on Oct. 15, are ambiguous, as is the source of legal authority for those regulations. Pattis also argued that Occupy’s tents constitute speech protected by the First Amendment, and that therefore the city could not forcibly remove them. But city lawyers and Drew Days, the head of the group of five proprietors of the Green that has perpetuated itself since the 17th century, maintained that the Green’s rules have always been clear, and that the city’s request for Occupy to leave is constitutional.

Pattis called Days as his first witness in an attempt to clarify the exact legal relationship between the city and the proprietors, formally known as the Proprietors of Common and Undivided Lands of New Haven. Days testified that the Green should be regarded as “private property for public use,” explaining that the proprietors are in charge of regulations for the Green’s use, which are meant to provide “guidance” to the city when it makes decisions.

Theoretically, Days said, the proprietors could override a city decision regarding the Green, but such a situation has never occurred in the Green’s centuries-long history. Pattis said this was the “central paradox” of the hearing — that a private body is able to overrule city actions in a public space.

Days said his group is concerned that Occupy New Haven’s encampment on the Green limits other people’s ability to enjoy the space. The encampment has also caused damage to the grass and elm trees on the upper Green, he said.

While Pattis and members of Occupy New Haven have accused the city of choosing to evict protesters due to Yale’s Commencement ceremony on May 20, Days denied any contact between Yale and the proprietors.

Pattis then called Robert Levine, director of the city’s parks department, to testify about how the city maintains the Green. Levine explained that despite never officially adopting the proprietors’ regulations regarding the Green, his department still uses them to decide how to manage it.

Next to take the stand was Danielle DiGirolamo, who said she has lived with Occupy New Haven since the protest arrived on the Green. The encampment that the city wants to evict, DiGirolamo said, is a central part of the protests.

“I think a visual message is way more effective than any pamphlet we could hand out,” she testified.

After the testimony, Kravitz began oral arguments by stating two points: that the Green is a public forum, and that Occupy New Haven is engaged in activities protected by the First Amendment. Whether the city can limit those activities, he said, is the central question of the case.

But Pattis said he believes the question of who truly controls the Green to be an important question as well. He asked Kravitz to extend the time Occupy will be allowed to remain on the Green so that further research can be done on the Green’s legal status.

Meanwhile, city-hired attorney John Horvack and Alfred Pavilis, an attorney representing the proprietors, argued that the central question facing Kravitz was one of the boundaries of First Amendment protections. In response to a question posed by Kravitz, Horvack said the city does not want to prohibit protests on the Green, but only to remove permanent structures on the Green due to a variety of safety and environmental concerns.

Kravitz said he “took heart” to that argument, and questioned why the city would allow Occupy New Haven to stay so long and provide them with bathroom facilities if their intent was to stamp out the protest’s anti-economic inequality message, as Pattis had claimed.

Horvack finished by arguing that Pattis had failed to prove that the city would be infringing upon protesters’ First Amendment rights. If Kravitz allows Occupy to stay on the Green, he said, it would set a precedent that could allow any group to spend as much time on the Green as they would like.

After the hearing, Kravitz said he would allow protesters to remain on the Green until at least 5 p.m. on April 9, two days later than the date he set at a pre-hearing conference Tuesday afternoon. He said he needed additional time to prepare his written opinion, which he aims to release by then.

On the steps of the Church Street courthouse, Occupy New Haven member Ray Neal, who Pattis called as a witness at the hearing, said he would continue to protest with Occupy New Haven, whether or not Kravitz rules in their favor.

Occupy New Haven is the last encampment of its kind in New England.

When they first pitched their tents in October, protesters had full cooperation from the city, which provided portable toilets for the encampment and secured the location with police officers. Adam Joseph, the City Hall spokesman at the time, said the city did not plan an end date for the protest’s presence on the Green, emphasizing that the city’s primary concern was public safety in and around the Green.

That changed earlier this month, when the city and the Green’s proprietors proposed Occupy New Haven move to another space or limit its presence on the Green to designated time periods. After protesters rejected the city’s proposal, city officials issued a notice that the Green needed to be cleared of Occupy’s tents by March 14.

As the city-imposed deadline neared, Pattis filed a lawsuit against the city and the proprietors and successfully convinced federal judge Janet Hall to allow protesters to stay on the Green until after today’s hearing.